Con Con: What it is and why New Yorkers should care

New Yorkers will have the opportunity this November to choose whether to have a constitutional convention, a method for changing the state constitution by electing delegates to come up with a slate of proposed amendments.
Jon Campbell / Albany Bureau

The New York State Capitol in Albany on May 31, 2017.(Photo: Jon Campbell, Albany Bureau)

ALBANY — New York voters will have a once-in-a-generation chance this November to crack open the state's constitution and begin the process of revamping it.

They'll just have to remember to flip their ballot first.

Voters on Nov. 7 will be asked whether to approve what's known as a constitutional convention, a chance for delegates from across New York to gather in Albany to rewrite the state's most important governing document and put the changes to voters.

It's first of three statewide proposals voters will decide this year — all of which will be listed on the back of the ballot.

The impact could be enormous: The state's detailed, 60,000-word constitution hasn't been rewritten since 1938, and it forms the basis of its government, court system and citizens' rights.

But while proponents of a "con con" say the document is due for a much-needed refresh, opponents — including dozens of labor unions across the state — fear it could be an unwieldy process that could roll back protections New Yorkers have enjoyed for decades.

What's a con con?

A constitutional convention is a deliberative body of delegates who would come up with a proposal or proposals to rewrite, update, add to or otherwise change New York's constitution.

Any proposals approved by the delegates would then be put to a public referendum, where voters would have the chance to adopt the constitutional changes or reject them.

Without a convention, state lawmakers can still change the constitution — but it's a high bar to clear. The legislature must pass an amendment twice — with an election in between — before it heads to a statewide referendum. A convention essentially streamlines the process.

What am I voting on?

Every 20 years, voters are asked: "Shall there be a convention to revise the constitution and amend the same?" That's the question that will be on this year's ballot.

If more people vote yes, it starts a multi-year process.

Voters would choose the delegates — three in each state Senate district, plus another 15 "at large" — in November 2018. The convention would then begin in April 2019, with the proposals put to voters no less than six weeks after it's finished.

If voters vote no this November, then there will be no convention and the constitution will remain in place.

Voters rejected a convention the last two times it was on the ballot, in 1997 and 1977.

Who's for it?

The Bar Association says a convention could help streamline New York's court system, which has 11 different trial courts and is widely viewed as one of the most complicated in the country, and clean up restrictive voter registration rules that make it impossible to register on Election Day.

Among other supporters are former state Chief Judge Jonathan Lippman, the League of Women Voters and Evan Davis, a former counsel to late Gov. Mario Cuomo who started a group backing a convention.

The biggest financial backer, however, has been Bill Samuels, a longtime Democratic political activist and reform advocate. His father, Canandaigua businessman and frequent gubernatorial candidate Howard Samuels, successfully led a push for an off-cycle convention in 1965.

Bill Samuels(Photo: Effective NY)

Bill Samuels' group, NY People's Convention, had spent about $350,000 promoting a yes vote as of early October, much of which has gone toward a digital campaign, according to state Board of Elections records.

His group has backed a wide slate of reforms to tackle in a convention, including tougher anti-corruption measures, the legalization of marijuana, stronger equal-rights protections and an environmental bill of rights.

Samuels has said he plans to spend about $500,000 total on the effort.

"If (current Gov. Andrew) Cuomo weren't governor and I thought we could get these things through the legislature, I'd be against the people's convention," Samuels said. "The only reason I'm for the people's convention is we can't get it through the legislature."

Who's against it?

A wide coalition of organizations and labor unions have joined forces to create a wide-ranging coalition to oppose a convention, including several that make strange bedfellows — such as Planned Parenthood Empire State Acts and the New York Right to Life Committee; the left-leaning Working Families Party and the state Republican Party; and the New York Rifle and Pistol Association, and Rochester Metro Justice.

That coalition, known as New Yorkers Against Corruption, has been almost entirely bankrolled by labor unions, which had contributed more than $1.2 million to the effort as of early October.

The members have varied reasons for opposing a convention.

Environmental groups, for example, fear the constitution's environmental protections could be rolled back, such as the "Forever Wild" clause that protects the Adirondacks and Catskills from most large-scale development.

Gun owner-rights groups, meanwhile, fear a convention could result in greater restrictions on firearms.

But it's the labor unions that have been most aggressive in pushing a no vote, with the New York State United Teachers union distributing seemingly ubiquitous lawn signs that have popped up in all corners of the state.

Mario Cilento, president of the state AFL-CIO, said New York's constitution guarantees collective bargaining rights for public workers and provides valuable protections, including eight-hour days, five-day weeks and prevailing wage requirements for public works projects.

New York State AFL-CIO President Mario Cilento(Photo: Submitted)

There's also the matter of pensions for public workers, which are guaranteed by the state constitution.

"We have some of the strongest labor protections in our state constitution of any state in the country," Cilento said. "We're really concerned that outside interests would come into this state for a convention and try to dismantle those protections. It's a real concern for us."

Convention supporters push back against the idea that a convention could harm pensions held by current public workers, noting they are contractual agreements and pointing to federal court precedents that protect them.

What about Cuomo?

The current governor has said he supports a constitutional convention — in theory.

But in recent months, he's raised concern about the structure of a convention, which could allow current state lawmakers to become elected delegates.

"In practice, the way this system would work is you have to run for delegate to the convention, the people who would probably run would be the current elected officials," Cuomo said in Rochester earlier this month. "So if we’re going to have a convention of the current elected officials to rewrite the constitution, that defeats the purpose."

The last constitutional convention in 1967 was headed by then-Assembly Speaker Anthony Travia, a Bronx Democrat who was convention president. Sitting lawmakers also served as majority and minority leaders.

Samuels, however, calls Cuomo's position "disingenuous," noting Cuomo had signaled support for a constitutional convention during his 2010 campaign. (Cuomo also had called for changes to the delegate-selection process that never happened, including limitations on lawmakers and lobbyists serving as delegates.)

"The governor is trying to have it both ways," Samuels said.

In the 1967 convention, just 7 percent of delegates were sitting state lawmakers, Samuels noted. In all, 98 of the 185 delegates that year held some political office or appointment, according to the League of Women Voters.

What happened last time?

Voters last approved a convention in 1965, which came after lawmakers agreed to put it on the ballot in between the traditional once-every-20-year votes.

The convention met in the state Capitol from April through September of that year, putting together a slate of changes to the constitution that went to voters that year.

But the new constitution was overwhelmingly rejected by voters, 3.5 million votes against to 1.3 million votes for. It was torpedoed in part by the delegates' decision to package all of the amendments into a single public vote, with many voters angered by a measure that would have required the state to fund parochial schools.

Adjusted for inflation, the 1967 convention cost an estimated $47 million, according to SUNY New Paltz political scientist Gerald Benjamin.

Prior to that, a convention was held amid the Depression in 1938, which resulted in various worker protections that remain in effect today.

Fred Norton, a Republican delegate who represented Genesee County and part of Erie County at the 1967 convention, called that summer "the greatest educational experience on local and state government."

Norton, then a Buffalo-based attorney, is now town supervisor of Arkwright, Chautaqua County.

"Every state agency and every court had a representative at that convention, and they were either defending their turf or seeking to enlarge it," Norton said in an interview last week. "The state constitution, if you've ever read it, is huge when you compare it to the federal constitution."

After the vote — then what?

If voters reject a convention, that's it — the process is over until the question's back on the ballot in 20 years.

If they vote yes, it would kick off a year-long election process for potential delegates.

There would be 204 delegate positions available: three in each state Senate district, and another 15 representing the entire state.

It would be much like a normal election. District-level candidates seeking a party's ballot line would have to collect 1,000 petition signatures (or 5 percent of eligible party voters) to get on the primary ballot. A primary election would decide who gets each party's ballot line in November.

Independent candidates, meanwhile, could get on the November ballot by collecting petition signatures from 3,000 voters or 5 percent of the total voters in the last gubernatorial election, whichever is lower.

The process is different for statewide delegates.

The winners of each party's primary would be grouped as a slate of 15 candidates. Come November, voters would vote for a party's slate — not for individual candidates.

Any voter is eligible to run, including state lawmakers.

That's some of the concern: Elected officials would have an advantage because of their name recognition and political network. If elected, the state constitution allows them to collect the $79,500 delegate salary on top of their normal pay.

Judges, however, could be at a disadvantage. State law has strict rules prohibiting most outside political activities for judges, though they are specifically permitted to run for delegate.

Some New York judges have asked the state Advisory Committee on Judicial Ethics for clarity on what they would and would not be able to do in a run for delegate. So far, the committee has declined to weigh in, calling the question "premature and hypothetical" until the results from this November's vote are in.